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HomeMy WebLinkAbout3066 AMC 10 Persistent Violation & Failure to Appear ORDINANCE NO.'7D(PlD AN ORDINANCE AMENDING AMC CHAPTER 10 PUBLIC PEACE, MORALS, AND SAFETY BY ADDING SECTIONS 10.120 "PERSISTENT VIOLATION" AND 10.125 "PERSISTENT FAILURE TO APPEAR" Annotated to show dolesisng and additions to the code sections being modified. Deletions are bold lined through and additions are bold underlined. WHEREAS, Article 2. Section 1 of the Ashland City Charter provides: Powers of the City. The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession. WHEREAS, residents, visitors and business owners have, with increasing frequency and urgency, expressed concern to City elected officials and staff about a growing number of incidents of unlawful behavior in the City's downtown area; WHEREAS, a small number of persons appear from Police Department records to be responsible for a significant percentage of low level crimes and violations in the City's downtown area; WHEREAS, the downtown area affords opportunities for unlawful activity by those willing to disregard certain Oregon statutes and City ordinances and enables such persons to associate with others who may be willing to engage in petty crimes or ordinance violations; WHEREAS, even repeat violators of statutes and ordinances regulating conduct, frequently can evade judicial sentencing through failing to appear in court, ignoring court-imposed fines or being released from overcrowded County jail facilities; and WHEREAS, even persistent violators have been found to curb their unlawful behaviors in order to retain the privilege of visiting favored areas in the City. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 10 Public Peace, Morals, and Safety of the Ashland Municipal Code is hereby amended by adding the following Sections as follows: Ordinance No. _ Page I of 5 10.120 Persistent Violation. AMC 10.120.010 -Enhanced Law Enforcement Area and Persistent Violation, Misdemeanor. A. It is the intent of the City Council to protect discrete areas within the City that are experiencing increased unlawful activity against becoming an attraction for more such activity and to protect the public against health and welfare hazards posed by persons who are attracted to these areas for opportunity to engage in or to contact others to engage in unlawful activity. B. The City Council finds that the following geographic areas within the City are particularly affected by unlawful behavior and/or are subject to a disproportionate number of incidents of the unlawful activities comprising _ persistent violation as defined in AMC 10.120.020 below, and declares each such area to be an enhanced law enforcement area: 1) Downtown Enhanced Law Enforcement Area - Exhibit A. AMC 10.120.020 A person commits the crime of persistent violation if: A. The person is convicted in Ashland Municipal Court for any combination of the following crimes or violations occurring in separate incidents within a six month period within an enhanced law enforcement area: (1) Three (3) or more Class A. B or C felonies or Class A or B misdemeanors; (2) Two (2) Class A, B or C felonies or Class A, B, or C misdemeanors plus one (1) or more violations of the ordinances set forth in (4) below; (3) Three (3) or more Class C misdemeanors; or (4) Three (3) or more violations of any of the following ordinances: a. AMC 9.08.110--Scattering Rubbish; b. AMC 9.08.170--Unnecessary noise; c. AMC 9.16.110--Dogs-Control Required; d. AMC 10.40.030--Consumption of Alcohol in Public; or e. AMC 10.40.040--Open Container of Alcohol in Public. AA4C- 10.46.020 Prohibked B. The person knowingly enters an enhanced law enforcement area in violation of a Municipal Court expulsion order as a term of the person's probation or a court expulsion order pursuant to AMC 10.125.010, et sec. of summons or eitations for- three separate 01tepd-ents w4hing p. Ax-,(&)~~ ver-iod fe- those eombination of those er-imes and/or- violations prov-ded in ♦ MG 1.120.-04W. rc~cOrdinance No. Page 2 of 5 AMC 10.120.030 Mandatory Arrest. A. When a peace officer has probable cause to believe that a person has committed the crime of persistent violation, the officer shall arrest and take into custody the alleged violator. AMC 10.120.040 Misdemeanor Classification: Presumptive Penalty. A. Persistent Violation is a Class B Misdemeanor. B. Unless there is reasonable cause to order otherwise, upon a finding that any offense supporting a conviction for persistent violation occurred within an enhanced law enforcement area, in addition to any other appropriate conditions of probation, the Court shall expel the person from an enhanced law enforcement area defined in AMC 120.020.010B for a period not less than three (3) months or more than one (1) year, unless the court finds it necessary to: a. Specifically address the remedy for the violation; and/or b. Allow the person to travel to and from the person's place of employment, educational facility, City offices, physical or mental health treatment facility, or other areas that the court deems materially related to the person's crimes or violations, the needs of the person, or the protection of the public. SECTION 2. Chapter 10 Public Peace, Morals, and Safety of the Ashland Municipal Code is hereby further amended by adding the following Sections: AMC 10.125.010 Persistent Violation-Hy Failure to Appear, Citation; Form. (1) Upon the city attorney's complaint of ver-sistent violation for failure to appear under AW 10.'20 ORS 133.060 or 133.070, a law enforcement officer shall issue a citation ordering the person to appear in Court within three iudicial days or the next regularly scheduled Municipal Court hearing date, whichever is later, and show cause why the Court should not enter a Court's expulsion order when the officer has probable cause to believe that: (a) The person has intentionally, knowingly or recklessly engaged in repeated failure to appear in Court three (3) or more times within a twelve (12) month period after receiving personal service of summons, citation or release from the fail with an order or agreement for appearance to respond to criminal or code violation citations requiring a court appearance. AMC 10.125.020 Effect of citation; contents; hearing; Court's order; use of statements made at hearing. (1)(a) A citation shall notify the respondent of a Municipal Court hearing where the respondent shall appear at the place and time set forth in the citation. (2)(a) The hearing shall be held as indicated in the citation. At the hearing, the respondent shall be given the opportunity to show cause for why a Ordinance No. _ Page 3 of 5 Court's expulsion order should not be entered. The hearing may be continued for up to 30 days. The Court may enter: (A) A temporary expulsion order pending further proceedings; or (B) A Court's expulsion order if the Court finds by a preponderance of the evidence that: (i) The person intentionally, knowingly or recklessly engages in repeated failure to appear in Court three (3) or more times within a twelve (12) month period after having received personal service of summons, citation or been released from the *ail with an order or agreement for appearance to respond to criminal or code violation citations requiring a court appearance. (b) In the order, the Court shall specify the conduct from which the respondent is to refrain, which may include physical presence within an enhanced law enforcement area defined in AMC 120.020.010B or other area of the City of Ashland the court deems materially related to the person's crimes or violations or the protection of the public except to: (A) Specifically address the remedy for the violation; and/or (B) Travel to and from the person's place of employment, educational facility, public offices, physical or mental health treatment facility, or other areas that the court deems materially related to the person's crimes or violations, the needs of the person, or the protection of the public. (3) The order is of unlimited duration unless limited by law, but not to exceed one year. (4) If the respondent fails to appear at the time, date and place specified in the citation, the Municipal Court shall issue a warrant of arrest as provided in ORS 133.110 in order to ensure the appearance of the respondent at Court and shall enter a Court expulsion order, unless the Court finds there is reasonable cause to do otherwise. (5) Except for purposes of impeachment, a statement made by the respondent at a hearing under this section may not be used as evidence in a prosecution for persistent violation as defined in AMC 10.120.020 or for violating a Court's expulsion order as defined therein. AMC 10.125.030 Service of expulsion order; entry of order into APD data systems. (1) Service of a Court's expulsion order shall be made by personal delivery of a copy of the order to the respondent except in the instance when the Court indicates that the respondent appeared in person before the Court. (2) Whenever an expulsion order, as authorized by AMC 10.125, is served on a respondent, the person serving the order shall immediately deliver to the city attorney a true copy of the affidavit of proof of service, on which it is stated that personal service of the order was made on the respondent, and a copy of the order. If service of the order is not required pursuant to subsection (1) of this section, the Court shall deliver a copy of the order to the APD. Upon receipt of a copy of the order and notice of completion of any required service by a member of a law enforcement agency, the APD shall Ordinance No. Page 4 of 5 immediately enter the order into a reliable database, maintained on a daily basis and accessible to APD law enforcement personnel at anytime. SECTION 3. Savings. Notwithstanding this amendment/repeal, the City ordinances in existence at the time any criminal or civil enforcement actions were commenced, shall remain valid and in full force and effect for purposes of all cases filed or commenced during the times said ordinances(s) or portions thereof were operative. This section simply clarifies the existing situation that nothing in this Ordinance affects the validity of prosecutions commenced and continued under the laws in effect at the time the matters were originally filed. SECTION 4. Severability. The sections, subsections, paragraphs and clauses of this ordinance. are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 5. Codification. Provisions of this Ordinance shall be incorporated in the City Code and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however that any Whereas clauses and boilerplate provisions (i.e. Sections 3-4) need not be codified and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the S day of 2012, 3=D and M;day of 2012. Barbara M. Christensen, City Recorder SIGNED and APPROVED this -P6 day of, 2012. Jahn S mberg, Mayor G` Revie ed as to form: KJ C_ avid H. Lohman, City Attorney Ordinance No. _ Page 5 of 5 EXHIBIT "A" - AMC 10.120.010B1 //s CITY OF 4 w ILI -AS H LAN D Downtown Enhanced r ® Law Enforcement Area - Exhibit A j \ co~ A i % City....... a Hall Post / offic f 46, OSF C Sp S n W S rinds J' P i T q ; L7thia ar g Park w ~ I o` V, 51 E MAIN ST ~eCP~ 4, ~irp ~ Q W E S